Thiensville Creamery Co. v. Hickcox

Siebecker, J. Tbe defendant claims that the writing in question is in its terms a guaranty of collection. The words, “I will guarantee your account with Ered Turner up to $250,” clearly indicate that the signer of the instrument intended to make himself responsible for the obligations Turner would incur in running an account for the purchase of goods from the creamery, and the plaintiff so understood it and extended credit to Turner accordingly. Hickcox’s subsequent treatment of the writing accords with .the idea that it is a guaranty of payment. The next clause of the writing, to the effect that settlements of the account were to be made “on the first and fifteenth of each month,” shows that the guaranty was to secure payment of any unpaid part of the Turner account up to the amount of $250, regardless of previous semi-monthly payments during the time credit was extended. The phraseology imports an undertaking by the defendant to pay Turner’s continuing liability under successive transactions on account, and is not limited as to time or to any specific account, and when accepted is operative until revoked. It is earnestly contended that the court erred in holding that the guaranty became obligatory on the defendant. The court declared that, “although there was no formal acceptance and notice thereof given to TLickcox, it is apparent that the parties dealt with each other as if formal notice had been given.” This finding, if supported in the evidence, is in efi feet one that there was a mutual assent of the plaintiff and defendant to this contract and that the credit in question was extended to Turner in reliance thereon. Can it be said that the defendant had actual notice of the plaintiff’s acceptance of the guaranty within a reasonable time after the plaintiff’s acceptance thereof? The evidence shows that the plaintiff insisted on a settlement of Turner’s account in accordance with the terms of the guaranty on the 15th of August- and 540 that it received payment of the amount then due on account in the form of a check payable to the plaintiff and having the defendant’s name as signer. The plaintiff’s officers and agents testify to having received payment of this check. It also appears that Turner brought this check and delivered it to the plaintiff. These facts appear by evidence other than the entries in the exchange register of the Thiensville bank, in which were listed out-of-town checks, which was improperly received as evidence and cannot be considered in the case. It also appears that when the second payment on the account became due on the last day of August and Turner failed to pay it the defendant immediately notified the plaintiff, “I hereby beg to withdraw the guaranty I made for the account of the Farm Products Company or Fred Turner,” which, as the trial court considered, tends to show that the defendant understood that the plaintiff had accepted the guaranty. This is also corroborated by the defendant’s conduct when the plaintiff’s agents finally demanded settlement of the balance due them on Turner’s account and by the other facts and circumstances of the transactions of the parties disclosed by the evidence. In the light of this state of the evidence, the defendant’s claim that his. denial of having signed and issued any check such as the plaintiff asserts was delivered to it by Turner must be accepted as conclusive that he issued no such check, cannot be acceded to. We think that the trial court was not bound by such denial in the light of the evidence tending to show that the sum of $197 was paid to the plaintiff on the defendant’s check. It is considered that the trial court’s finding of fact that the defendant had notice of acceptance of guaranty by the plaintiff is sustained by the evidence. There is no reversible error in the record. By the Court. — The judgment is affirmed.